Eugene Martin LaVergne

Democratic-Republican for United States Senate 543 Cedar Avenue West Long Branch, New Jersey 07764 Telephone: (732) 272-1776

October 8, 2013 Honorable Mary C. Jacobson, A.J.S.C. Superior Court of New Jersey Law Division Civil Part Mercer County Court House Trenton, New Jersey 08625 RE: In the Matter of the Application to Recheck the Voting Machines to be used in the October 16, 2013 Special General Election for the Office of United States Senator Docket No. MER-L-2013-13 Dear Judge Jacobson: Please accept this letter as additional opposition to the application of the State from interested party Eugene Martin LaVergne (hereinafter EML). This additional opposition will be limited to the issue of the validity of service of process which issue did not arise until after the State filed their purported Proof of Service documents with the Court on October 7, 2013. A copy of those documents, obtained from the Courts Law Clerk Emily, are attached at hereto.1 It is submitted that even a cursory review of the documents filed on October 7, 2013 by the State as their Proof of Service demonstrate conclusively that the State has failed to
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EML was notified late in the day of October 8, 2013 by the Courts Law Clerk Emily that, in addition to the copies of the States service documents she had provided to him on the afternoon of October 8, 2013, that there were also several United States Post Office green cards (return receipts) that the Court had but which copies were not provided to EML. This additional information (the green cards) in no way affects the legal issues raised herein.

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timely comply with the mandatory commands of this Court as articulated in the body of the Order to Show Cause. The proofs submitted by the State demonstrate that no interested party (the limited few even contemplated by the State) has actually been Constitutionally served with process within the meaning or R. 4:4-3 and R. 4:4-4. Therefore, as a threshold matter, this Court does not now have the necessary constitutionally mandated in personam jurisdiction over even the few interested parties the State concedes have a right to be heard. The State may not proceed ex parte. As such, the Order to Show Cause must be dismissed. THE ORDER TO SHOW CAUSE: On September 24, 2013 the State filed a Verified Complaint and a proposed Order to Show Cause (OSC) without any accompanying legal brief in support of the application. That same day, September 24, 2013, the Court signed and entered the proposed OSC with some alterations. Specifically, the OSC by its terms was purported to have been entered by the Court under the authority of R. 4:67-1(a) and N.J.S.A. 19:52-6. As to the issue of service of process, the OSC by its terms specifically Ordered that the parties in interest (those limited few proposed by the State as the parties in interest regarding such a far reaching application) be served with the Order to Show Cause and Verified Complaint forthwith, but no later than September 30, 2013 . (Emphasis added). See OSC, paragraph 1. Moreover, paragraph 2 of the OSC by its terms specifically requires that the State shall provide the Court with proof of service of the pleadings [on] the parties of interest no later than October 7, 2013. See OSC at paragraph 2. The Court clearly required proof of service of process upon the interested parties, not mere notice of the application to the interested parties. THE STATE HAS FAILED TO SERVE ANYONE AND AS SUCH THE OSC MUST BE DISMISSED: To this end, R. 4:67-3 provides that if an OSC is issued ex parte pursuant to R. 4:67-1(a), as is clearly the case here, the process to be served with the Verified Complaint shall be the OCS itself rather than a separately issued traditional form of Summons. R. 4:67-3 also provides that [t]he order to show cause, together with a copy of the complaint and any affidavits similarly certified, shall be served within the State at least ten days before the return day and in the manner prescribed by R. 4:4-3 and R. 4:44 for the service of a summons, unless the court orders shorter or longer

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service or some other manner of service. The rule further provides that under limited circumstances service may be made by mail if the court by order directs and provided that the nature of the action is such that the court may thereby acquire jurisdiction. (Emphasis added) Id. Stated plainly, the OSC issued in this case specifically by its terms required that constitutionally valid and effective service (not merely notice) be effected by September 30, 2013 on all interested parties so that the Court would have jurisdiction to take action on the return date if appropriate. Since this is an OSC under R. 4:67-1(a), and since the Court did not specifically direct that service by mail would be allowable, the manner the State was required to effect service of process (the OSC and Verified Complaint) on the interested parties, by virtue of R. 4:67-3, was required to be in accordance with the procedures for service of process as outlined in R. 4:4-3 and R. 4:4-4. Frankly, these are pretty basic and elementary concepts. It is clear from the papers filed by the State that for some unknown reason the State chose not to ever actually serve anyone! Indeed, while EML has filed papers opposing the application, even he has not been served, though this in not an issue as to EML as EML has entered an appearance as a matter of law by virtue of his filing his written opposition. The Verified Complaint and proposed OSC were filed by the State on Tuesday September 24, 2013. That same day, the Court singed the OSC. The next day D.A.G. Donna Kelly prepared a generic cover letter dated September 25, 2013. The day after that, on Thursday September 26, 2013, someone in Ms. Kellys office mailed the pleadings to all of the interested parties. No actual good faith effort to serve anyone was made before the Attorney General made a decision to simply mail the pleadings and nothing more. However, it is clear that in this case, merely mailing the pleadings is deficient and is specifically insufficient to qualify as constitutional service of process. The State was required to effect service of process upon each of the interested parties by some means listed in R. 4:4-4. R. 4:4-4(a) lists various acceptable ways of effecting service on an individual in detail in subparagraphs (a)1 through (a)8. The rule then goes on to state after subparagraph (a)8 as follows: *** The foregoing subparagraphs (a)(1) through (a)(8) notwithstanding, in personam jurisdiction may be

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obtained by mail under the circumstances and in the manner provided by R. 4:4-3. (Emphasis added). [R. 4:4-4(a), at short qualifying paragraph found after subparagraph (a)(8)]. The circumstances and the manner provided in R. 4:4-3 are described in that rule specifically and in relevant part as follows: *** If service can not be effected after a reasonable and good faith attempt, which shall be described with specificity in the proof of service required by R. 4:4-7, service may be made by mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, to the usual place of abode of the defendant or a person authorized by rule of law to accept service for the defendant or, with postal instructions to deliver to addressee only, to defendants place of business or employment. [R. 4:4-3]. Resort to using United States Mail as a valid and constitutionally acceptable mode of service may only be resorted to by a party under two very specific and limited circumstances: [1] when the Court specifically Orders that service by mail may be permitted in the OSC itself as per R. 4:67-3, which circumstance is not applicable in this case, or [2] when efforts at traditional service of process as enumerated in R. 4:4-4(a)(1) through (a)(8) have been actually tried and have failed after a reasonable and good faith attempt at service of process, which reasonable and good faith attempt shall be described with specificity in the proof of service required by R. 4:4-7 [.] The State did not have the Courts express permission in the body of the OSC itself to effect service of process by mail under R. 4:67-3. Moreover, it is clear that the State did not even so much as attempt to serve

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anyone before deciding to simply mail the pleadings by United States Mail on September 26, 2013. Therefore, as the State is clearly lacking the required reasonable and good faith attempt at service of process, the State had no right to resort to alternative service of process by mail under R. 4:4-3. EML is unaware of any Proof of Service submitted by the State under R. 4:4-7 at all, nonetheless one that explains in detail the supposed reasonable and good faith efforts that took place before a decision was made to simply mail the pleadings. As such, the State has not effected service of process on anyone. See City of Passaic v. Shennett, 390 N.J.Super. 475, 483 (App. Div. 2007). The Court Rules certainly allow amendment to any Proof of Service to demonstrate compliance. However, no amendment can change historical facts, and the fact that all that was done was someone mailed the documents on September 26, 2013, nothing more. In light of the fact that the State has completely failed to demonstrate constitutionally valid service of process on anyone, EML submits that the Court should summarily dismiss the OSC without need of any parties to appear on October 9, 2013 at 2:00 p.m. The substantive merits can only be entertained by this Court after the State has satisfactorily demonstrated in the first instance that they have effected service of process upon all interested parties as directed in the OSC. The State simply can not do so on the facts extant as the only action ever taken by the State was the mailing the pleadings. This, under the circumstances, is not valid or effective service of process on anyone. Therefore, the OSC must be dismissed without any further action due to the States failure to comply with the clear terms of the OSC. Respectfully submitted,

Eugene Martin LaVergne, Pro Se Democratic-Republican for United States Senate cc: Donna Kelly, D.A.G. County Counsel

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